2025 S.D. 51
S.D.2025Background
- Miles and Tori Melius, B.M.'s maternal relatives, had temporary custody of B.M. after the child's biological mother voluntarily placed her with them due to a medical diagnosis (failure to thrive).
- Lakota Songer, B.M.'s biological father, established paternity and sought custody after being initially excluded from involvement by the mother and later by the Meliuses.
- The circuit court granted the Meliuses temporary custody based on concerns about the mother's care but later awarded permanent custody to Lakota after evaluating all parties and improvement in Lakota's parenting.
- The circuit court awarded the Meliuses visitation and required Lakota to use a specific daycare and pay attorney fees related to trial delays due to his late disclosure of tribal membership (triggering ICWA review).
- On appeal, both parties challenged aspects of the custody, visitation, daycare, and fees decision; the Supreme Court affirmed some rulings and reversed others, particularly the visitation and attorney fees related to ICWA delay.
Issues
| Issue | Meliuses' Argument | Lakota's Argument | Held |
|---|---|---|---|
| Extraordinary circumstances for non-parent custody | Evidence of close bond and alleged parenting deficiencies justified awarding them custody. | No extraordinary circumstances; improved parenting and bond with child. | No extraordinary circumstances; custody right remains with parent. |
| Award of visitation to non-parents | Ongoing bond necessitates visitation in child’s best interest. | Only a parent can control third-party visitation absent extraordinary circumstances. | Reversed court-ordered visitation; parent's right not rebutted. |
| Continued custody under ICWA causing harm | Child would suffer serious emotional/physical damage in Lakota's custody. | No clear and convincing evidence custody would result in serious harm; improvements shown. | No clear and convincing evidence; circuit court ruling affirmed on this point. |
| Daycare and attorney fees (ICWA delay) | Fees justified due to delays and violations; specific daycare necessary for stability. | Court should not mandate daycare after expiry; not responsible for attorney fees for delay, as ICWA compliance is not solely his burden. | Did not reach daycare issue (moot); reversed ICWA-related attorney fees, remanded for determination re: contempt. |
Key Cases Cited
- Troxel v. Granville, 530 U.S. 57 (parental fundamental right to control child’s care, custody, and control)
- Aguilar v. Aguilar, 877 N.W.2d 333 (S.D. 2016) (extraordinary circumstances requirement for non-parent custody)
- Veldheer v. Peterson, 824 N.W.2d 86 (S.D. 2012) (clear and convincing evidence needed for extraordinary circumstances and visitation)
- Clough v. Nez, 759 N.W.2d 297 (S.D. 2008) (visitation rights for non-parents follow same legal principles as custody)
- Howlett v. Stellingwerf, 908 N.W.2d 775 (S.D. 2018) (non-parent custody disputes are not contests between equals)