Veldheer v. Peterson & Mandel
2012 SD 86
| S.D. | 2012Background
- Maternal grandparents intervened in a custody dispute between the parents of two children.
- Trial court awarded custody to the grandparents and visitation to the father; attorney’s fees denied.
- Grandparents sought joinder/intervention under SDCL 25-5-29 and 25-5-30; Father opposed.
- The circuit court accepted joinder/intervention; trial proceeded with parents and grandparents presenting evidence.
- Trial evidence showed Father actively cared for children during his custody periods; no clear and convincing evidence of parental forfeiture or serious detriment was found.
- This appeal challenges the propriety of joinder/intervention, the rebuttal of the parental presumption, and the control of attorney’s fees, with remand for fee determinations and potential reconsideration of custody.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Grandparents could join/intervene in the custody action. | Grandparents were primary caregivers for about two years. | Joinder would infringe the parents’ constitutional rights absent extraordinary circumstances. | Joinder/intervention proper under SDCL 25-5-29. |
| Whether the grandparents rebutted the parents’ presumptive custody right under SDCL 25-5-29. | Grandparents showed extraordinary circumstances and chill to the parents’ rights. | The evidence supported rebuttal of the presumption due to abandonment/abdication. | Presumptive right not rebutted; court erred in awarding custody to nonparents (reversed). |
| Whether the court properly assessed “serious detriment” under SDCL 25-5-29(4) and 25-5-30. | Grandparents’ care created safeguards but did not prove serious detriment if custody awarded to Father. | There were significant negative indicators for continuing parental custody. | No clear and convincing evidence of serious detriment; remand for further proceedings on fees. |
| Whether the trial court properly allocated attorney’s fees and appellate fees. | Fees should reflect prevailing party and justify award under SDCL 15-17-38. | Each party bears own fees unless statute supports award. | Remanded for findings of fact and conclusions on trial fees; appellate fees denied. |
Key Cases Cited
- Clough v. Nez, 759 N.W.2d 297 (2008 S.D.) (nonparents may seek custody where they served as primary caretakers under SDCL 25-5-29)
- Meldrum v. Novotny, 640 N.W.2d 460 (2002 S.D.) (extraordinary circumstances required to rebut parental rights; compare with nonparent custody)
- Feist v. Lemieux-Feist, 793 N.W.2d 57 (2010 S.D.) (extinguishes presumption only with clear and convincing evidence of extraordinary circumstances)
- Beach v. Coisman, 814 N.W.2d 135 (2012 S.D.) (serious detriment must be shown by clear and convincing evidence; distress alone not enough)
- S.M.N. v. S.M.N., 781 N.W.2d 221 (2010 S.D.) (extraordinary circumstances required to rebut parental presumption; best interests secondary to constitutional rights)
- Meldrum v. Novotny, 640 N.W.2d 460 (2002 S.D.) (clarifies standards for rebutting parental rights in custody cases)
- In re Adoption of D.M., 710 N.W.2d 441 (2006 S.D.) (intervention and standing principles in custody-related proceedings)
- Fuerstenberg v. Fuerstenberg, 591 N.W.2d 798 (1999 S.D.) (context for evaluating equal consideration; factors informing custody decisions)
- Troxel v. Granville, 530 U.S. 57 (2000) (parental rights are fundamental; state must show extraordinary circumstances for nonparents)
- GILBERTSON v. CITY OF S.D., 2010 S.D. (2010) (not cited here; included for completeness of SD custody framework)