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Clough v. Nez

December 23, 2008; as amended February 25, 2009



The opinion of the court was delivered by: Zinter, Justice


[¶1.] Lorraine Nez appeals the circuit court's award of visitation to Keith Clough, a nonparent. Because the circuit court found extraordinary circumstances for an award of visitation to a nonparent, we affirm.

Facts and Procedural History

[¶2.] This case involves a visitation dispute regarding five-year-old C.C., who was born on May 26, 2003. Clough claimed that he had sexual intercourse with Nez in August 2002. Clough further claimed that Nez subsequently told him she was pregnant and he was the father. Nez denied that she had sexual intercourse with Clough, but that in order to relieve a "big mental strain," she wanted Clough and his girlfriend Lee Ann Strenstrom (Nez's half-sister) to raise C.C. until Nez was "out of school, and stable." According to Nez, she made an agreement with Clough and Strenstrom that they would share the responsibility of raising C.C. According to Clough, however, Strenstrom had little involvement as he and she were only dating "on and off. She wasn't living with me and what not. Basically, an on-andoff girlfriend at that point[.]" Notwithstanding this dispute regarding the nature of the Clough-Strenstrom relationship, there is no dispute that on June 10, 2003, Nez and Clough executed a sworn acknowledgment of paternity expressly indicating Clough was C.C.'s biological father. A birth certificate was thereafter issued reflecting Clough's surname.

[¶3.] According to Clough, he took C.C. from Mission to live with him in Sioux Falls two days after her birth.*fn1 Clough testified that when he took C.C. to Sioux Falls, he and Strenstrom were not living together, and that he alone raised C.C. He further testified that Strenstrom only "occasionally" saw C.C. Conversely, Nez claimed that Strenstrom and Clough were living together "every day," and that they raised C.C. together until July 2004. The circuit court resolved this factual dispute adversely to Nez. The circuit court's finding, which has not been challenged, treats Clough as the primary caretaker. And more importantly, it is not disputed that during the first four years of C.C.'s life, Nez provided no support, and Nez's contact with C.C. was limited and infrequent.

[¶4.] In 2004, Clough was charged with simple assault involving Strenstrom.*fn2 Upon his arrest, Clough's mother took C.C. from Sioux Falls to temporarily care for her in Mission. Although Nez then started two tribal court proceedings to obtain custody, both actions were dismissed for lack of jurisdiction. C.C. was subsequently returned to Sioux Falls to again live with Clough.*fn3 In January of 2005, Clough and C.C. moved to Rapid City. Although the circuit court found that Nez knew or could have determined Clough's new location, Nez had no contact with C.C. from December 2004 through March 2006.

[¶5.] On September 21, 2006, Clough commenced this suit seeking legal and physical custody of C.C. Nez objected, denying that Clough was C.C.'s father. Nez also sought custody and requested court-ordered DNA tests to determine whether Clough was the biological father. Clough objected to the DNA test because the time for contesting paternity had expired under the statute of limitations. The circuit court ruled that this Court declared the statute of limitations unconstitutional*fn4 and ordered Clough to take a DNA test. The test indicated that Clough was not C.C.'s biological father.

[¶6.] At the beginning of trial, Clough conceded that he was not the biological father and he withdrew his claim for custody. He did, however, request that the court award him visitation. After hearing the evidence, the circuit court awarded Nez custody. The court ruled that even though Clough did not dispute Nez's fitness, and even though Clough was not the biological father, visitation would be allowed because extraordinary circumstances justified visitation, namely: (1) Clough was C.C.'s primary caretaker since the time of her birth, (2) Clough and C.C. were closely bonded, (3) rupturing the connection between Clough and C.C. would be extremely harmful and detrimental to C.C.'s welfare, and (4) Clough had provided for C.C.'s physical, emotional and other needs her entire life. The court concluded that "[p]ursuant to SDCL 25-5-29 and 25-5-30, extraordinary circumstances exist [that] require the relationship between [Clough] and [C.C.] be continued." The court awarded Clough visitation that included a full weekend each month, summer visitation, and alternate holidays.

[¶7.] Nez does not appeal the nature or extent of the visitation ordered. Instead, she appeals the award of any visitation, arguing that Clough failed to show the extraordinary circumstances required for a nonparent to obtain visitation. Nez also argues that the circuit court erred by failing to give deference to her wishes as the biological parent and by failing to apply the correct burden of proof. By notice of review, Clough appeals the circuit court's award of custody to Nez.


[¶8.] These arguments require our review of the statutes and decisional law governing a nonparent's right to custody and visitation of children. The arguments also require our review of the circuit court's extraordinary circumstances findings. We "review the trial court's findings of fact under the clearly erroneous standard [and] will overturn . . . findings of fact on appeal only when a complete review of the evidence leaves the Court with a definite and firm conviction that a mistake has been made." Miller v. Jacobsen, 2006 SD 33, ¶19, 714 NW2d 69, 76. "Statutory interpretation is a question of law, reviewed de novo."Scheller v. Faulkton Area Sch. Dist. No. 24-3, 2007 SD 42, ¶5, 731 NW2d 914, 916.

[¶9.] The Due Process Clause of the United States Constitution protects parents' rights to generally raise their children as they wish. Medearis v. Whiting, 2005 SD 42, ¶17, 695 NW2d 226, 230-31 (citing Troxel v. Granville, 530 US 57, 66, 129 SCt 2054, 2060, 147 LEd2d 49 (2000)) (noting, "it cannot now be doubted that the Due Process Clause of the Fourteenth Amendment protects the fundamental right of parents to make decisions concerning the care, custody, and control of their children"). Accordingly, a court may not presume that visitation with a nonparent is in the best interests of a fit parent's child. Id. ¶18, 695 NW2d at 231 (citing Troxel, 530 US at 69, 120 SCt at 2062). Further, the burden of disproving that a nonparent's visitation would be in the best interests of the child may not be placed upon a fit parent. Id. Ultimately, "[i]n order to grant a nonparent visitation rights with a minor child over the objections of a parent, a clear showing of gross misconduct, unfitness, or other extraordinary circumstances affecting the welfare of the child is required." D.G. v. D.M.K., 1996 SD 144, ¶46, 557 NW2d 235, 243 (citing Cooper v. Merkel, 470 NW2d 253, 255-56 (SD 1991)).

[¶10.] "'Extraordinary circumstances' denotes more than a simple showing that visitation would be in the child's best interest." Id. (citing Quinn v. Mouw-Quinn, 1996 SD 103, ¶13, 552 NW2d 843, 846). Although discussed in the analogous area of custody disputes, courts have identified a number of extraordinary circumstances that are sufficient to rebut the constitutional presumption of deference due parents.

These circumstances must be only those that result in serious detriment to the child. They include the abandonment or persistent neglect of the child by the parent; the likelihood of serious physical or emotional harm to the child if placed in the parent's custody; the extended, unjustifiable absence of parental custody; the abdication of parental responsibilities; the provision of the child's physical, emotional, and other needs by persons other than the parent over a significant period of time; the existence of a bonded relationship between the child and the nonparent custodian sufficient to cause significant emotional harm to the child in the event of a change in custody; the substantial enhancement of the child's well-being while under the care of the nonparent; the extent of the parent's delay in seeking to reacquire custody of the child; the demonstrated quality of the parent's commitment to raising the child; the likely degree of stability and security in the child's future with the parent; the extent to which the child's right to an education would be impaired while in the custody of the parent; and any other circumstances that would substantially and adversely impact the welfare of the child.

Meldrum v. Novotny, 2002 SD 15, ¶58, 640 NW2d 460, 470-71 (Konenkamp, J. concurring in part) (citations omitted).

[¶11.] Following Meldrum, these rebutting circumstances were codified in SDCL 25-5-29 and 25-5-30. SDCL 25-5-29 expressly authorizes nonparents to petition for custody or visitation if they have served as the child's primary caretaker, are closely bonded as a parental figure, or have otherwise formed a significant and substantial relationship. Even then, however, they may petition for custody or visitation only when the constitutional presumptions due parents are rebutted. The statute finally identifies a number of those rebutting circumstances.

Except for proceedings under chapter 26-7A, 26-8A, 26-8B, or 26-8C, the court may allow any person other than the parent of a child to intervene or petition a court of competent jurisdiction for custody or visitation of any child with whom he or she has served as a primary caretaker, has closely bonded as a parental figure, or has otherwise formed a significant and substantial relationship. It is presumed to be in the best interest of a child to be in the care, custody, and control of the child's parent, and the parent shall be afforded the constitutional protections as determined by the United States Supreme Court and the South Dakota Supreme Court. A parent's presumptive right to custody of his or her child may be rebutted by proof:

(1) That the parent has abandoned or persistently neglected the child;

(2) That the parent has forfeited or surrendered his or her parental rights over the child to any ...

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