Grandparent Visitation Rights in South Dakota: A Comparison of South Dakota’s Grandparent Visitation Statutes with the Grandparent Visitation Statutes of Other States.

By Ryan W. Snell

SUMMARY:

     Many states’ grandparent visitation statutes contain provisions related to: (1) the best interest of the grandchild; (2) the treatment of a parent’s death or deprivation of visitation rights; and (3) the effect of subsequent adoption on grandparent visitation.[1]  The South Dakota Statute allows grandparent visitation rights as deemed appropriate by the courts. 

The statute sets forth a list of factors to be weighed in the consideration of the granting of grandparent visitation rights.  These factors include: (1) the grandparent need not petition for the right of visitation; (2) if the visitation is in the child’s best interest; and either (3) the visitation would not significantly interfere with the parent-child relationship; or (4) the parent or custodian of the grandchild has denied or prevented a grandparent reasonable opportunity to visit the grandchild.[2]  Of notable significance is that grandparent visitation rights may terminate as the result of the subsequent adoption of the grandchild.[3]

     Comparatively, the Montana statute allows grandparent visitation under any situation in which it is found to be in the best interest of the child.  Five things must be established: (1) visitation is in the best interest of the grandchild; (2) the grandparent is a fit and proper person to have visitation; (3) the grandparent has made repeated attempts to visit the grandchild during a six month period but was not allowed to do so; (4) there is no other way for the grandparent to visit the grandchild other than through court intervention; and (5) the grandparent has, by clear and convincing evidence, successfully rebutted the presumption that the parent’s decision to refuse grandparent visitation was reasonable.[4]  Wyoming, in addition to looking at the best interest of the grandchild, looks at whether or not the rights of the parents will be substantially impaired by an order of grandparent visitation.[5]

     This paper will introduce the importance of grandparents in the lives of their grandchildren, briefly discuss the development of modern grandparent visitation statutes, analyze the South Dakota grandparent visitation statutes, provide information on the statutes of the remainder of the states, and conclude by examining the only U.S. Supreme Court decision on grandparent visitation rights.

TEXT:

I.  Introduction

     Grandparents have the potential to play an extremely important role in the life of a grandchild.  Grandparents and grandchildren often form a reciprocal relationship, each benefiting from interaction with the other.[6]  From their grandparents, grandchildren learn respect, gain a sense of responsibility, and feel genuine love.[7]  Similarly, grandparents are invigorated by the exposure to youth, gain an insight to today’s changing society, and avoid the loneliness that is often a part of the elder’s life.[8]

     Psychological studies on the topic reveal a grandchild receives substantial benefit from interaction with the grandparent.  One study found a grandchild who had a close relationship with his/her grandparent(s) were more comfortable with the elderly and often more emotionally secure than other children.[9]  In addition, these children are less likely to be abused by their parents or to become drug users or to become victims of suicide because grandparents provide the first line of support when children are experiencing problems with their parents.[10]

     Because the relationship between grandparent and grandchild is so important to the development of the grandchild, 49 states[11] have enacted some form of visitation statute.  However, the standards of set forth by the many states are far from uniform.

II.  Development of Modern Visitation Statues

     Grandparents had no right to visitation at common law.  A parent could arbitrarily determine whether to allow grandparent visitation, a decision viewed as final and binding, regardless of the impact on the grandchild.  This was so because at common law, “the right to determine the third parties who are to share in the custody and influence of and participate in the visitation privileges with the children should vest primarily with the parent who is charged with the daily responsibility of rearing the children.”[12]  The right of the grandparent to visit the grandchild was not considered a legal right but was instead considered a moral right.[13]

     Parents traditionally maintained a constitutionally protected right to determine his/her child’s companionship, care, custody, and management.[14]  The case that first explicitly recognized the fundamental right to parent is Meyers v. Nebraska.[15]  In this case, the United States Supreme Court held that among those rights protected by the Constitution is the right to rear one’s child without governmental interference.[16]

     Forty years after the decision was handed down in Meyers, states began to enact statutes recognizing a right of visitation by grandparents of their grandchildren.  This change occurred, in part, because the political strength of the elderly increased due to the growing number of elderly, combined with better-organized elderly political associations.[17]  Today, approximately seventy-five percent of all older Americans are grandparents.[18]  Based on this percentage, it can be determined that those directly effected by the recently developed grandparent visitation statutes number ninety-eight million.

     Initially, grandparent visitation statutes only addressed the situation where one of the parents died and the surviving spouse denied visitation.  During the 1960’s and 1970’s, as the divorce rate began increased, the grandparent visitation statutes were revised to grant standing to grandparents to petition for visitation if the parents of their grandchildren divorced.  Even though there has been progress toward establishing enhanced rights for grandparent visitation, the states are fragmented as to the factors considered. 

Also, because grandparent visitation statutes vary from state-to-state, a grant of visitation in one state is not given full faith and credit in other states.[19]  As a result, if a grandparent wins right to visitation and the parents and child move to another state, the grandparent then faces the additional challenge of establishing standing to petition for visitation rights in the new state (which may be impossible, depending on the new state’s statute and on the status of the child’s family).[20]

III.  South Dakota’s Grandparent Visitation Statutes

     South Dakota has adopted two statutes relevant to the issue of grandparent visitation rights.  South Dakota Codified Laws § 25-4-52 gives to the courts the power to grant grandparent visitation rights.  South Dakota Codified Laws § 25-4-54 limits the broad authority of SDCL § 25-4-52, by extinguishing previously granted rights of visitation if someone adopts the child, other than the child’s stepparent or grandparent.

     The South Dakota legislature has determined the right to grandparent visitation is of genuine concern within the area of family law and, in response, has set forth specific provisions to determine if such visitation is appropriate.[21]  In the first clause of SDCL § 25-4-52, the legislature has determined that the circuit court may grant reasonable rights of grandparent visitation with or without petition by the grandparent.[22]  The legislature has determined that the grant of grandparent visitation rights is to be left to the discretion of the courts.[23]  This runs contrary to the general proposition that the right of visitation derives from the right of custody.[24]

     The legislature has tempered this broad grant of judicial authority by mandating that certain criteria be met.  The first criterion that must be satisfied is that the visitation must be “in the best interests of the grandchild.”[25]  While several other states have specific factors required for consideration in determining whether grandparent visitation is in the best interest of the grandchild, such specific factors have not yet been developed in South Dakota.[26]  However, determination of “best interest,” in the context of grandparent visitation, implicitly requires an examination of the physical, intellectual, and moral well being of the grandchild.[27]

     Those states that have developed specific factors with regard to the “best interest of the grandchild” give guidance to grandparents seeking visitation and should be referenced.  Factors that have been listed include: (1) age of the grandchild;[28] (2) willingness of the grandparents to encourage a close relationship between the grandchild and the parents;[29] (3) the preference of a grandchild of sufficient age;[30] (4) the amount of time that has elapsed since the grandparent last had contact with the grandchild;[31] (5) the child’s adjustment to home, school, and community;[32] (6) the mental and physical health of the grandchild and grandparents;[33] (7) that the grandparent is a fit and proper person to have visitation;[34] (8) the capacity and disposition of the grandparents to give the grandchild love, affection, and guidance;[35] (9) the motivation of the grandparent;[36] and (10) the circumstances that ended the familial relationship.[37]

     The “best interest of the child” standard does not stand alone as the determinative criterion.  In addition to the determination of the “best interest of the child,” the court must conclude that a grant of grandparent visitation “would not significantly interfere with the parent-child relationship.”[38]  Unfortunately, South Dakota case law is sparse with regard to this criterion.  In one case, the South Dakota Supreme Court upheld the decision of the circuit court denying grandparent visitation where the settled record evidenced ill feelings, bitterness, and animosity between the father and the paternal grandmother.[39]  Beyond animosity between the parent and grandparent, the South Dakota Supreme Court has yet to consider other factors with regard to significant interference with the parent-child relationship.

     Fortunately, other states provide some guidance on determining whether the parent-child relationship would be interfered with significantly.  For instance, New Mexico looks at: (1) prior interaction between the grandparent and the parent; and (2) the present relationship between the grandparent each parent.[40]  Similarly, Tennessee looks to: (1) the effect of hostility between the parent and the grandparent, and (2) the “good faith” of the petitioning grandparent.[41]  Washington imposes a slightly more stringent criterion in that the grandparent must rebut a presumption that the parent’s reason(s) for denying visitation was reasonable.[42]

     The final criterion grandparents must prove in order to secure the right of visitation is that “the parent or custodian of the grandchild has denied or prevented a grandparent reasonable opportunity to visit the grandchild.”[43]  The inquiry pertinent to this criterion is what is to be considered “reasonable visitation.”  Again, the South Dakota courts provide little guidance.  Additionally, the statute does not elaborate on what factors should be weighed with regard to what precisely is “reasonable visitation.”[44]  In Strouse v. Olson, the South Dakota Supreme Court found reasonable a parent’s refusal of visitation where the children were stressful before and after the grandmother’s visits.[45]

Other states, too, are largely silent on the particular factors to be considered and recognize that such a determination is open to a myriad of objective considerations.  Some of the factors that could be considered to determine whether a parent’s reason(s) for denying visitation is reasonable are: (1) whether the grandparent is seeking visitation after a lengthy period of no contact with the grandchild;[46] (2) the quantity of visitation time requested and the impact this may have on the child’s regular activities;[47] (3) the finding of a preexisting relationship that justifies the visitation while balancing the interest of the grandchild in having visitation with the grandparent with the right of the parents to exercise their parental authority;[48] and (4) the amount of personal contact that has occurred between the grandparent and the grandchild and between the grandparents and the parents.[49]  In any event, there is a presumption the parent acts in the best interest of the child when he/she denies a grandparent visitation rights, the rebutting of which requires the grandparent to exhibit a compelling interest in favor of visitation.[50]

Recognizing the existence of a presumption in favor of a parent’s decision, the South Dakota legislature specifically overrode this presumption when the parent of the child has died.  The final sentence of SDCL § 25-4-52 states “there is a presumption that visitation with the grandparents is in the best interest of the grandchild if a parent of that grandchild, who is also the child of that grandparent, has died.”[51]  Therefore, the parent wishing to deny visitation to the parents of a deceased spouse carries the burden of demonstrating grandparent visitation would not be in the best interest of the grandchild.[52]

The grandparent visitation provision as set forth in SDCL § 25-4-52 remains largely untested before the South Dakota Supreme Court.  The Court has noted the existence of the statute as a provision for granting visitation where no right of custody exists.[53]  However, the Court has refused to apply the policy rational behind the South Dakota Grandparent Visitation Statute to extend the right of visitation to individuals other than grandparents.

The right of grandparent visitation is not absolute nor without qualification.  Two very important qualifications attach to the rights of visitation granted by SDCL § 25-4-52 and are contained in SDCL § 25-4-54.  This section addresses the situations where: (1) the child is adopted before grandparent visitation is sought; and (2) the child is adopted after the granting of grandparent visitation rights.

The first sentence of § 25-4-54 mandates the provisions of § 25-4-52 “do not apply if the child has been placed for adoption with a person other than the child’s stepparent or grandparent.”[54]  This section voids the provisions of § 25-4-52 if the child is placed for adoption with persons other than those enumerated.  In application, the concept is quite simple.  Grandparents may not seek nor may they be granted rights of visitation where someone other than a stepparent or a grandparent adopts the child.  The intended effect of this provision is to maintain the continuity of the grandchild’s adoptive family, while severing ties to the past that may hinder the child’s development with the new family.

The second sentence of § 25-4-54 mandates that “any grandparent visitation rights granted pursuant to §§ 25-4-52 to 25-4-54, inclusive, prior to placement for adoption of the child with persons other than the child’s stepparent or grandparent shall terminate upon the placement of the child for adoption.”[55]  The effect of this section extinguishes any previously granted rights of grandparent visitation if the grandchild is placed for adoption with someone other than a stepparent or grandparent.  Like the first sentence of this section, the second sentence focuses concern on the familial continuity and development of the child with regard to the adoptive family.  It does so by severing previous familial ties.

The South Dakota grandparent visitation law allows grandparents to receive visitation rights with their grandchildren when the grandparent’s child has died or become a non-custodial parent through divorce.  Additionally, the law allows visitation rights when the parents are still together.  Whether a court will grant visitation rights to a grandparent is determined by an application of the “best interest of the child” standard.  The right of grandparent visitation is growing throughout the United States.  All states now recognize that the benefits of grandparent-grandchild interaction flow both ways.  Grandchildren receive additional love, respect, and responsibility and grandparents are invigorated, gain valuable insights, and are spared unnecessary loneliness.[56]

IV.  Grandparent Visitation Statutes of the Other States[57]

     49 states, excluding the District of Columbia and Idaho[58], have provisions for grandparent visitation and require such visitation be granted only in cases where it is in the “best interest of the child.”  While the states are in agreement on the application of the “best interest of the child” standard, there remains on key difference that divides the states into two distinct groups.  Some states allow grandparent visitation only where the grandparent’s child has died or has become a non-custodial parent because of divorce, others do not impose such a strict limitation.  South Dakota falls into the latter group and does not adhere to the death or deprivation of custody requirement.

     Nineteen states require death or deprivation of custody as a prerequisite to a petition for grandparent visitation.  Following is a brief summary of those statutes.

Arizona allows grandparent visitation only if the marriage of the parents has been dissolved for at least three months, either parent has been deceased or absent for at least three months, or if the child was born out of wedlock.[59]

Arkansas allows grandparent visitation only if the marital relationship between the parents has ended in death, divorce, or legal separation.[60]  Visitation will also be allowed if the child is in the custody or in the guardianship of someone other than one of the natural parents or if the child is illegitimate and, in the case of paternal grandparents, paternity has been established.[61]

Colorado allows a grandparent to receive visitation rights if: (1) the marriage of the grandchild’s parents has been declared invalid, dissolved, or if the parents are legally separated; (2) the legal custody of the grandchild has been given to someone other than the grandchild’s parents (except in the cases of adoption); or (3) if the grandchild’s parent, who is the child of the grandparent has died.[62]

Georgia allows a grandparent to file an original action for visitation or to intervene in an action regarding the child: a custody action, divorce action, termination of parental rights action, visitation action, or stepparent (or blood relative) adoption.[63]  No original action may be filed if the parents of the grandchild are not separated and the grandchild is living with both parents.[64]

Hawaii allows grandparent visitation if either: (1) both parents of the child have died; or (2) the child’s parents are divorced or separated.[65]  Jurisdiction will not be recognized unless Hawaii is the home state of the child at the time the action is commenced.[66]

Indiana allows grandparent visitation only if: (1) the child’s parent is deceased; (2) the child’s parents were divorced in the state of Indiana; or (3) the child was born out of wedlock and, in the case of paternal grandparents, paternity has been established.[67]

Louisiana provides for a grant of reasonable rights of grandparent visitation if one of the parties to a marriage: (1) dies; (2) is interdicted; or (3) is incarcerated.[68]

Massachusetts allows for grandparent visitation if the grandchild’s parents are divorced, separated (under a temporary order or judgment of separate support), deceased (one or both parents), or if the grandchild was born out of wedlock and paternity has been established.[69]  It also provides for visitation if the child is in foster care.[70]

Michigan provides that grandparents may be granted visitation rights if: (1) one of the parents has died; (2) the marriage of the parents of the grandchild is declared invalid or is dissolved by the court; (3) the court enters a decree of legal separation; or (4) legal custody of the child has been given to someone other than a parent or stepparent.[71]  The court is not permitted to enter an order that would restrict the movement of the grandchild if the restriction serves the sole purpose of allowing a grandparent to exercise visitation rights.[72]

Nebraska allows grandparent visitation if: (1) the child’s parent or parents are deceased; (2) the marriage of the child’s parents has been dissolved; or (3) the parents never married but paternity has been established.[73]  The court may modify an order granting or denying such visitation upon a showing that there has been a material change in circumstances which justifies such modification and that the modification would serve the best interests of the child.[74]

Nevada provides for grandparent visitation if the child’s parents are deceased, divorced or separated from the other parent, or if the parental rights of either parent has been terminated.[75]

New Hampshire allows grandparent visitation in cases of death of a parent, divorce, legal separation, or where the parents are unwed.[76]

North Carolina provides for grandparent visitation only when custody is at issue or if a stepparent or other relative has adopted the child.[77]

Ohio permits a grandparent to petition for the right of visitation only in cases where there is divorce, annulment, legal separation, child support, death of a parent, or unwed parents.[78]

South Carolina has a strictly qualified provision regarding grandparent visitation in that it mandates that the visitation not interfere with the parent-child relationship.  Recognized grounds for petitioning for visitation are death of a parent, divorce, or separation.[79]

Tennessee allows grandparent visitation in the case of death, divorce, separation, if the parent has been missing for at least six months, or if the court of another state has granted grandparent visitation.[80]  Additionally, if the child has been removed from the custody of the child’s parents, guardian, or custodian, and if the child is placed in foster care, the grandparents may be allowed visitation if the grandparents would protect the child and the grandparent is not implicated in the commission of an abusive or criminal act against the child or the child’s parents.[81]

Vermont allows grandparents to be awarded visitation as a party to a custody or visitation action.[82]  Visitation rights may also be granted if the parent is deceased, incompetent, or has abandoned the child.[83]  The Vermont statute authorizes the court to modify or terminate the order granting grandparent visitation upon a demonstration of material changes in circumstances.[84]

Virginia allows grandparent visitation only in cases where a child has been placed in foster care.[85]  Visitation is only allowed if the grandparent had an on-going relationship with the child prior to being placed in foster care.[86]

Washington provides that a person other than a parent may petition the court for visitation with a child at any time or may intervene in a pending dissolution, legal separation, or modification of parenting plan proceeding. A person other than a parent may not petition for visitation unless the child's parent or parents have commenced an action for marital dissolution.[87]

Twenty-nine states have statutes similar to South Dakota’s, which allow grandparent visitation even if the grandparent’s child has not been separated from the grandchild by death or deprivation of custody.  This approach creates a greater likelihood that grandparents will be granted access to their grandchildren.  With this expansion of grandparent visitation rights there is the risk that, in certain cases, a grandparent who really should not be allowed access to a grandchild could still pursue visitation rights.[88]  This undesirable situation is avoidable as the courts in all 50 states are vested with the authority to deny grandparent visitation if it is not in the best interest of the child.

Alabama allows grandparent visitation in the cases of death or deprivation of custody.  Grandparent visitation is also allowed in cases where it is found to be in the best interest of the child even if the child is still living with both parents and one of the parents objects to the visitation.[89]

Alaska has determined that a child's grandparent may petition the superior court for an order establishing reasonable rights of visitation between the grandparent and child if: (1) the grandparent has established or attempted to establish ongoing personal contact with the child; and (2) visitation by the grandparent is in the child's best interest.[90]  The statute does not restrict grandparent visitation to situations to where the grandchild’s parent has died or been divorced.[91]

California does not allow a grandparent to petition for visitation unless: (1) the parents are living separately; (2) a parent has been absent for a month; (3) a parent joins in the petition with the grandparents; or (4) the child is not residing with either parent.[92] Therefore, it is possible for a grandparent to be awarded visitation, absent death or deprivation of custody, if a parent joins in the petition.

Connecticut broadly allows for visitation by providing that the superior court may grant the right of visitation with respect to any minor child or children to any person, upon an application of such person. Such order shall be according to the court's best judgment upon the facts of the case and subject to such conditions and limitations, as it deems equitable.  In making, modifying or terminating such an order, the court shall be guided by the best interest of the child.[93]

Delaware states if the natural parents of the child are cohabitating as husband and wife, “grandparent visitation may not be granted over both parents’ objection.”[94]  Thus, as in California, grandparents may obtain visitation with their grandchild, even if the parents are still together, so long as only one parent objects.[95]

Florida allows grandparent visitation if: (1) one or both parents has died; (2) the marriage of the parents has been dissolved; (3) a parent has deserted the child; (4) the child was born out of wedlock; or (5) the child is living with both parents and either parent has denied visitation.[96]  Departing from the vast majority of the states, Florida requires mediation in cases where grandparent visitation is contested.[97]

Illinois has determined a grandparent may receive visitation only in one of five situations: (1) the parents are separated on a permanent or indefinite basis; (2) one parent has been absent for more than a month; (3) at least one parent has died; (4) one parent joins in the petition for grandparent visitation; or (5) a sibling is in state custody.[98]  Therefore, like California and Delaware, a grandparent my obtain rights of visitation over the objections of a parent if the other parent joins in the petition.

Iowa allows grandparent visitation in each of the following circumstances: (1) divorce or dissolution of marriage; (2) death; (3) foster care placement; (4) paternity; or (5) unreasonably restricted visitation by the grandparent’s child, regardless of whether the grandparent’s child is divorced.[99]

Kansas provides for grandparent visitation even if death or divorce has not occurred, provided there is a substantial relationship between the grandparent and grandchild.[100]  Visitation rights are also allowed if the grandparent’s child has died.[101]

Kentucky provides that reasonable rights of visitation may be granted to grandparents.[102]  This statute does not require evidence of death or divorce.[103]

Maine allows grandparent visitation if one of the child’s parents has died or if there is a sufficient existing relationship, or sufficient effort to establish one, between the child and the grandparent.[104]

Maryland simply states that a grandparent may petition for rights of visitation even absent a showing of death or divorce.[105]

Minnesota allows grandparent visitation if the grandparent’s child has died, or if there has been a proceeding for dissolution, custody, legal separation, annulment, or parentage.[106]  It also allows for visitation if the child has resided with the grandparents for a period of 12 months or more and is subsequently removed form the home.[107]

Mississippi allows grandparent visitation if the grandparent has established a viable relationship with the child and the parent or custodian of the child unreasonably denies visitation.[108]  Viable relationship means that the grandparent has “voluntarily and in good faith” supported the child financially for at least six months or has had frequent visitation (including occasional overnight visitation) for at least one year.[109]

           Missouri has determined that rights of grandparent visitation may be granted in cases of death or deprivation of custody, or if the grandparent is unreasonably denied visitation with the child for more than 90 days.[110]

         Montana allows grandparent visitation under any circumstances so long as the grant of visitation is found to be in the best interest of the child.[111]

         New Jersey allows grandparent visitation without proof of death or divorce.[112]

         New Mexico grants rights of grandparent visitation in cases of death, dissolution, or legal separation.[113]  Visitation is also allowed if the child is under six months of age and has lived with the grandparent for three months and is subsequently removed.  For children six months of age and over, visitation is allowed if the child has lived with the grandparent for six months with subsequent removal.[114]

         New York allows grandparents to seek visitation rights with their grandchildren if one or more parents are deceased or “where circumstances show that conditions exist which equity would see fit to intervene.”[115]

         North Dakota law states that the grandparents must be granted reasonable visitation unless it is found to be against the best interest of the grandchild.[116]  Visitation may be sought in a divorce proceeding, but may also be obtained if no divorce action has been filed.[117] 

         Oklahoma allows grandparent visitation whenever the district court deems it appropriate.[118]  In the case of a child born out of wedlock, the father’s parents can obtain visitation rights only after the father has been judicially determined to be the child’s father.[119]  If the court has terminated the rights of the illegitimate child’s parents, the grandparents may only obtain visitation rights if a previous relationship existed between the grandparent and the child.[120]

         Oregon provides that if it is in the best interest of the grandchild and an ongoing personal relationship exists, visitation will be allowed.[121]  Visitation will also be allowed: (1) upon a showing that the grandparent has established or attempted to establish ongoing contact with the child, but the custodian of the child has denied reasonable visitation; (2) any time during a domestic relations suit; or (3) after a final decree of divorce.[122]

         Pennsylvania has deemed grandparent visitation appropriate where there is proof of death or divorce.[123]  Grandparents may also petition for visitation if the grandchild lived with the grandparent for at least twelve months and the grandchild is subsequently removed from the home by the parents.[124]  The petition will not be granted if the court finds that it would interfere with the parent-child relationship.[125]

         Rhode Island grants grandparent visitation upon notice to both parents and to the child, if five criteria are satisfied.  These five necessary proofs are: (1) visitation is in the best interest of the grandchild; (2) the grandparent is a fit and proper person to have visitation; (3) the grandparent has made repeated attempts to visit the grandchild during a six month period but was not allowed to do so; (4) there is no other way for the grandparent to visit the grandchild other than through court intervention; and (5) the grandparent has, by clear and convincing evidence, successfully rebutted the presumption that the parent’s decision to refuse grandparent visitation was reasonable.[126]

         South Dakota, as previously discussed, allows grandparent visitation without restricting the granting of such visitation to death or deprivation of custody.[127]

         Texas provides that grandparents may obtain visitation in the following circumstances: (1) incarceration, incompetence, or death of the grandparent’s child; (2) divorce or separation of the parents; (3) abuse or neglect of the child by a parent; (4) adjudication that the child is in need of supervision; (5) termination of parental rights; or (6) the child has lived with the grandparent for al least six months during the twenty-four month period preceding filing of the petition.[128]  The petition can either be by way of an original suit or a suit for modification.[129]

         Utah is similar to Rhode Island in that it grants grandparent visitation upon notice to both parents and to the child, if five prerequisites are met.  These five necessary proofs are: (1) visitation is in the best interest of the grandchild; (2) the grandparent is a fit and proper person to have visitation; (3) the grandparent has made repeated attempts to visit the grandchild during a six month period but was not allowed to do so; (4) there is no other way for the grandparent to visit the grandchild other than through court intervention; and (5) the grandparent has, by clear and convincing evidence, successfully rebutted the presumption that the parent’s decision to refuse grandparent visitation was reasonable.[130]

         West Virginia permits grandparents to obtain visitation rights in cases of divorce, annulment, or separation.[131]  Grandparents may also obtain visitation if their child is deceased, unwed, or if the grandchild resided with the grandparents for six of the preceding twenty-four months and the parents subsequently refused visitation.[132]  Visitation maybe terminated or modified if it is in the best interest of the grandchild or if the grandparent has materially violated the terms and conditions of the order of visitation.[133]

         Wisconsin allows grandparent visitation in the case of death of the grandparent’s child.[134]  Visitation is also allowed in cases where the grandparent has “maintained a relationship similar to a parent-child relationship with the child.”  Further, grandparent visitation is allowed in paternity cases where paternity has been established, the child has not been adopted, and the parents have not married.[135]

         Wyoming provides for grandparent visitation without limiting visitation to situations where the grandchild’s parent has died or been divorced.[136]  The only requirement is that the visitation be in the best interest of the grandchild and that the rights of the grandparent’s child not be substantially impaired by the visitation.[137]  Grandparent visitation rights may be terminated for good cause.[138]    

V. Troxel v. Granville,

The U.S. Supreme Court’s View of Grandparent Visitation Statutes

Each of the aforementioned state statutes granting rights of grandparent visitation are open to challenge given the United States Supreme Court’s holding in Troxel v. Granville.  On January 12, 2000, the Supreme Court of the United States heard oral arguments in a case arising from a granting of grandparent visitation rights.[139]  Although it is extremely rare for the U.S. Supreme Court to hear a case involving a family law issue, the issue presented in Troxel carried with it potential national implications.  The dispute in Troxel focused on the constitutionality of the state of Washington’s grandparent (third-party) visitation statute, which allowed Jenifer and Gary Troxel to petition the state court for visitation rights concerning their two grandchildren, and permitted the court to grant these rights over the objections of the children’s mother.[140]  Forty-nine states have enacted grandparent visitation statues, in varying form, granting to grandparents a judicial remedy when they are denied access to their grandchildren.[141]

The United States Supreme Court affirmed the Washington Supreme Court’s ruling, holding that the trial court applied the visitation statute in a manner that violated Granville’s constitutional rights.[142]  Two concurring Justices supported a facial invalidation of Washington’s grandparent visitation statute, the plurality, however, stopped short of holding that state legislatures must codify a presumption in favor of the parent’s decision to refuse reasonable rights of visitation.[143]  Instead, the Court chose to examine the Washington statute on an “as applied” basis to hold in Granville’s favor.  Recognizing that the “family” is different than it was in years past and further recognizing the many benefits that children can receive from interaction with their grandparents, the Court did not hold on the larger issue of the constitutional validity of all grandparent visitation statutes.

The plurality did not define the precise scope of the parental rights to make decisions regarding grandparent visitation.[144]  It neither adopted nor rejected the standard proposed by the Washington Supreme Court that there must be a potential for harm to the child in order to justify judicial intervention.[145]  Instead, the plurality criticized the Washington statute for enabling a judge to substitute his or her judgment for that of a fit parent.[146] 

Recently, several states have expanded the circumstances under which grandparents can petition the courts for the right of grandparent visitation.[147]  The expansion of grandparent rights has heightened concerns over when the state government can influence the outcome of a family dispute.  Several state supreme courts, namely Tennessee,[148] Georgia,[149] North Dakota,[150] and Washington[151] have invalidated their grandparent visitation statutes, finding that the provisions violate the parent’s constitutional rights of privacy and autonomy.  All of these courts based their holdings on the fact that the statutes in question contained no provision for a “harm to the child” standard as a basis for the determination of whether grandparent visitation rights should be granted.  However, since all the state statues contain provisions for the “best interest of the child,” it is unlikely that these state supreme court rulings, or the U.S. Supreme Court’s holding in Troxel, will serve as a basis for finding the statutes in question facially invalid.  Any impact on the current state legislation will likely be minimal and any defects that may be brought to light through litigation are easily cured.

CONCLUSION:

South Dakota recognizes the importance of a child’s interaction with his or her grandparents.  Without contact with grandparents, a child loses a vital and natural way to see and understand the he or she is part of a continuum, that he or she has roots, that he or she is the future and the hope of all of those who preceded.[152]  Grandparents play a special role in the life of a child.  If a grandparent is physically, mentally, and morally fit, then a grandchild will almost always benefit from contact with the grandparent.[153]  The South Dakota grandparent visitation statute adequately serves to protect the interests of the grandparents while balancing the needs of the child and any potential impact on the parent-child relationship.