AuthorMairose, Rachel E.

    "A biological parent should not be deemed the proper custodian simply because they are a biological parent; rather, we must place our emphasis on what is best for the child." (1) This quote by the Honorable Justice Amundson in the 2002 South Dakota Supreme Court case Meldrum v. Novotny recognizes the need for child custody determinations to adjust to contemporary society. (2) The nuclear family--a mother, father, and dependent children--are no longer the only form that families take on. (3) It is becoming increasingly common for children to be raised by individuals with whom they have no biological or legal tie. (4) The nuclear family has traditionally taken preference over nontraditional families within the legal system. (5) Whereas nuclear families receive legal protections and rights such as child support obligations, custody protections, inheritance preferences, tax advantages, and other social benefits, non-nuclear families do not. (6) The United States Supreme Court has declared that biological ties between parents and children do not automatically receive constitutional protections, yet biological and legal ties still often trump psychological ties when custody becomes disputed among nontraditional families. (7) In his dissent in the United States Supreme Court case Michael H. v. Gerald Z)., (8) the Honorable Justice Brennan articulated that "[w]e are not an assimilative, homogeneous society, but a facilitative, pluralistic one, in which we must be willing to abide someone else's unfamiliar or even repellent practice because the same tolerant impulse protects our own idiosyncrasies." (9) As families change, the law must change with them. (10)

    As a response to changing family dynamics, many states have enacted de facto parenthood statutes. (11) As defined by the American Law Institute, a de facto parent is an individual, other than a legal parent, who for more than two years has lived with the child and regularly cared for the child in the capacity of a parent, either because the legal parent agreed to the arrangement or because the legal parent was not able to perform parental duties. (12) Recognition of a de facto parent allows an individual who does not have any legal or biological ties to the child to nevertheless retain visitation or custody rights when it is in the best interests of the child. (13) De facto parents are synonymously referred to as psychological parents because emphasis is placed on the child's psychological well-being when custody claims become controverted between biological and non-biological parents. (14) As described by the Supreme Court of New Jersey,

    At the heart of the psychological parent cases is a recognition that children have a strong interest in maintaining the ties that connect them to adults who love and provide for them. That interest... lies in the emotional bonds that develop between family members as a result of shared daily life. (15) South Dakota has not enacted a de facto parenthood statute, but the legislature acknowledged the need for change in 2002 when it enacted a set of laws allowing third parties to petition for custody of children under certain circumstances. (16) Under South Dakota Codified Law section 25-5-29, a third party can intervene in a proceeding for custody of a child that he or she has cared for and formed a parental bond with. (17) The statute reiterates that it is still assumed that the legal parent is the best parent for the child, but allows challengers to rebut the presumption. (18) As rebuttal evidence, the challenger can show proof that the parent neglected the child, the parent surrendered parental rights, the parent abdicated rights, or extraordinary circumstances exist which warrant granting custody to the challenger. (19) Section 25-5-30 lists ten factors which exhibit extraordinary circumstances. (20) By showing extraordinary circumstances, the child's psychological parent can successfully gain custody or visitation rights over the child. (21)

    In 2016, the South Dakota Supreme Court applied these statutes in Aguilar v. Aguilar. (22) The court was asked to decide whether extraordinary circumstances were present such that custody of the child at issue should be granted to the child's aunt, rather than her biological father. (23) The child had never lived with her father: he was in and out of prison in Arizona since she was born, and she had lived with her aunt in South Dakota since less than six months of age. (24) Whereas her father had never provided for the child's needs, her aunt had provided love and guidance, food and clothing, and a nurturing, stable, and drug-free home. (25) The court ruled that the aunt should have custody of the child because she had been the child's primary caregiver, an extraordinary circumstance that overcame the father's presumptive rights. (26)

    This casenote argues that third parties who have become psychological parents to children they have nurtured and cared for should use South Dakota Codified Law sections 25-5-29 and 30 to gain custody or visitation rights. (27) First, this casenote describes the facts and procedure of Aguilar v. Aguilar. (28) Next, it discusses the evolution of third-party child custody determinations in South Dakota and the constitutionality of those decisions. (29) The background also assesses the need for children to maintain continuity of care with the person whom they have formed a parent-child relationship with. (30) Finally, this casenote will conclude that extraordinary circumstances should legitimize psychological parents' claims and examine the best interests of the child in conjunction with extraordinary circumstances. (31)


    Antonio ("Tony") and Brittany Aguilar were married in Tucson, Arizona, in the summer of 20 1 0. (32) Their child, M.A., was born on April 30, 2011. (33) Both Brittany and Tony were nineteen years old at the time of her birth. (34) Neither were gainfully employed--Tony sold drugs to support Brittany and their child--and both were heroin users. (35)

    Tony grew up in Tucson and Phoenix, sometimes residing with his grandmother and sometimes living in a group home. (36) From the age of twelve, he lived on his own and sold drugs as a member of the Vista Bloods gang. (37) His criminal background included convictions for possession, consumption, and distribution of controlled substances, as well as multiple aggravated assault convictions. (38) On April 14, 2011, at the age of nineteen, he was convicted of a class-two felony for the sale of cocaine. (39) He was placed in an intensive probation program, but as a result of a failed drug test, was placed in a minimum security jail. (40) After a time, he was placed on work furlough. (41)

    In October 2011, Tony was allowed to return home to obtain some of his belongings (42) While at home, he noticed that Brittany did not look healthy. (43) Brittany admitted that she had been using heroin, as evidenced by the track marks on her arms. (44) Concerned for M.A.'s care, Tony called Brittany's mom, Koree Hamilton, and requested that she take M.A. back to South Dakota with her. (45) Koree came to Arizona with Tosha Smith, Koree's daughter, and brought M.A. to Sioux Falls to live with Tosha. (46) Brittany also returned to Sioux Falls with her mother and sister. (47) She was encouraged to seek treatment for her drug abuse problems but failed to do so. (48)

    Since October 2011, M.A. was cared for by Tosha, residing for a time in Sioux Falls and later moving to Rapid City. (49) Brittany allowed Tosha to become M.A.'s custodian and conceded that she was not able to provide a safe and nurturing home for M.A. (50) Tosha and M.A. formed a strong parental bond, and Tosha encouraged M.A. to form relationships with extended family, including aunts, uncles, and cousins in the Rapid City area. (51) Tosha provided all of M.A.'s necessities of life, including "daycare, medical, educational, clothing, food, and daily needs." (52) Perhaps most importantly, Tosha provided M.A. with love and guidance. (53)

    After M.A. moved to South Dakota, Tony had minimal contact with her. (54) He visited her twice; once in Sioux Falls in the summer of 2012, and a second time in December 2013 in Rapid City. (55) The circuit court, in its findings of fact, stated "[u]ntil the commencement of [Tony's] divorce action [from Brittany in 2014], Antonio did not maintain regular phone contact with M.A. or [keep] in contact with Tosha to check on the welfare of the minor child." (56) He had never taken on a parental role in her life or provided a home or financial support. (57)

    During probation, Tony took parenting and substance abuse classes and obtained his GED. (58) In September 2013, Tony was released from custody and moved in with his girlfriend, Chantil, whom he met through his brother, another Vista Gang member. (59) He continued to improve his life by leaving the gang and joining a church. (60) He also found part-time work as a cook. (61) Chantil provided most of his financial support. (62)

    Tony and Chantil drove to Rapid City in December 2013 with the hope of taking M.A. back to Arizona with them. (63) M.A. was approximately two and a half years old at that time. (64) During their visit, Tony, Tosha, and M.A. were driving around Rapid City when Tosha asked Tony to drive them to a convenience store so that M.A. could use the bathroom. (65) Tosha locked herself and M.A. in the bathroom and called Koree and Brittany for help to prevent Tony from taking M.A. with him. (66) Tony called law enforcement, but they refused to intervene when Brittany declared herself the mother. (67) Tony and Chantil returned to Arizona without M.A. (68)

    Tony filed an Emergency Petition for Physical Custody on February 4, 2014, in the Seventh Judicial Circuit Court in Pennington County. (69) Tosha filed a Motion to Intervene and requested custody of M.A. under South Dakota Codified Law section 25-5-29. (70) A week later, Tony...

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