APPEAL FROM THE CIRCUIT COURT OF THE SEVENTH JUDICIAL CIRCUIT PENNINGTON COUNTY, SOUTH DAKOTA HONORABLE MERTON B. TICE, JR. Judge
The opinion of the court was delivered by: Meierhenry, Justice
ARGUED ON OCTOBER 5, 2010
[¶1.] We must decide in this case whether South Dakota's third party custody statutes are constitutional. The two statutes in question are SDCL 25-5-29 and 25-5-30. The circuit court found these statutes unconstitutional because they do not specifically require "a finding of parental unfitness prior to awarding custody to a non-parent." We hold that the statutes can be construed constitutionally, and therefore, the circuit court must be reversed.
[¶2.] Zachary Lemieux-Feist (Father) and Ashley Fousek (Mother) had a daughter (A.L.F.). Father and Mother had a strained relationship that dissolved after A.L.F. was born. Leon Feist and Becky Lemieux-Feist (Grandparents) filed a petition against Father and Mother to gain custody of A.L.F. under SDCL ch. 25-5. Before the circuit court decided whether to grant Grandparents' petition, an agreement was reached between Father, Mother, and Grandparents. This agreement resulted in joint legal custody between Father and Mother, with primary physical custody with Mother and visitation for Grandparents. The circuit court approved this agreement. Grandparents later filed another petition to gain custody of A.L.F. Mother filed a motion to dismiss this petition, arguing that SDCL 25-5-29 and 25-5-30 are unconstitutional. The circuit court granted Mother's motion to dismiss. The circuit court declared these two South Dakota statutes unconstitutional because they "contain no requirement for a finding of parental unfitness prior to awarding custody to a non-parent." The circuit court based its ruling on Troxel v. Granville , 530 U.S. 57, 120 S.Ct. 2054, 147 L.Ed.2d 49 (2000) (plurality opinion). The circuit court did not enter findings of fact or consider whether the statutes at issue were capable of constitutional interpretation or application.
[¶3.] This Court reviews "a challenge to the constitutionality of a statute [ ] de novo." Currey v. Currey , 2002 S.D. 98, ¶ 7, 650 N.W.2d 273, 276 (citations omitted). Therefore no deference is given to the circuit court. In re S.M.N., T.D.N., and T.L.N ., 2010 S.D. 31, ¶ 10, 781 N.W.2d 213, 218. If a statute "can be construed so as not to violate the [C]onstitution, we will adopt such a construction." State v. Page , 2006 S.D. 2, ¶ 73, 709 N.W.2d 739, 763 (citations omitted). The party challenging the constitutionality of a statute bears a heavy burden: "There is a strong presumption that the laws enacted by the [L]egislature are constitutional and that presumption is rebutted only when it clearly, palpably and plainly appears that the statute violates a provision of the [C]onstitution." Burlington N. R.R. Co. v. Green , 2001 S.D. 48, ¶ 18, 624 N.W.2d 826, 831 (citations omitted).
[¶4.] SDCL 25-5-29 and 25-5-30 prescribe the circumstances permitting non-parents to seek visitation or custody of a child. See S.M.N., T.D.N., and T.L.N ., 2010 S.D. 31, ¶ 16, 781 N.W.2d at 220. These statutes require that the person seeking custody have a relationship with the child as "a primary caretaker" or "a parental figure" or that person and the child have "otherwise formed a significant and substantial relationship." SDCL 25-5-29. These statutes also establish that "a parent's presumptive right to custody" may be rebutted only by proof of abandonment or neglect, surrender, abdication of parental rights, or "other extraordinary circumstances [ ] result[ing] in serious detriment to the child." Id.
SDCL 25-5-29, in its entirety, provides as follows:
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 person other than the parent;
(3) That the parent has abdicated his or her parental rights and responsibilities; or
(4) That other extraordinary circumstances exist which, if custody is awarded to the parent, would result in ...