Parental Primacy Reaffirmed: No Non‑Parent Visitation Without Rebutting the Parental Presumption; ICWA Applies to Third‑Party Custody and the Duty to Inquire Rests with the Court

Parental Primacy Reaffirmed: No Non‑Parent Visitation Without Rebutting the Parental Presumption; ICWA Applies to Third‑Party Custody and the Duty to Inquire Rests with the Court

Introduction

In Melius v. Songer, 2025 S.D. 51, the Supreme Court of South Dakota addressed a high‑stakes third‑party custody dispute where the child’s aunt and uncle (Miles and Tori Melius) had been her guardians following health concerns in the biological mother’s care, while the biological father (Lakota Songer) sought and ultimately obtained custody. The case presented five principal questions:

  • Whether the non‑parents proved extraordinary circumstances under SDCL 25‑5‑29 and 25‑5‑30 to rebut the father’s constitutional presumption to custody and control, including visitation.
  • Whether the circuit court could nonetheless award non‑parent visitation as part of a “transition plan.”
  • How the Indian Child Welfare Act (ICWA) applies to third‑party custody cases and the evidentiary showing required.
  • Whether an order requiring a particular daycare provider infringed the father’s rights (and whether that issue was moot on appeal).
  • Whether attorney fees could be assessed against the father due to his late disclosure of tribal enrollment status.

The decision both clarifies and tightens South Dakota’s constitutional and statutory framework governing third‑party custody and visitation, and it squarely confirms that ICWA governs third‑party custody as “foster care placement” in the state. Equally significant, the Court assigns the initial federal duty to inquire under ICWA to the trial court, not to the parties, and reverses attorney fees imposed on the father for delay stemming from the court’s own missed inquiry.

Summary of the Opinion

  • No extraordinary circumstances; custody to father affirmed. The Court held that the Meliuses did not prove, by clear and convincing evidence, extraordinary circumstances under SDCL 25‑5‑30 to overcome the father’s constitutional and statutory presumption. The father demonstrated growth in parenting; hygiene concerns (notably diaper rashes) significantly improved; no abandonment, forfeiture, or abdication was shown.
  • Non‑parent visitation reversed. Because the non‑parents did not rebut the parental presumption, the circuit court lacked authority to award them “transition plan” visitation. Visitation derives from custody and is controlled by the same constitutional constraints; a court cannot apply a best‑interests analysis until the presumption is rebutted.
  • ICWA applies to third‑party custody. The Court confirmed that third‑party custody proceedings constitute an ICWA “foster care placement.” The non‑parents failed to prove, by clear and convincing evidence with qualified expert testimony, that the father’s continued custody would likely cause serious emotional or physical damage, with the required causal nexus.
  • Daycare order moot. The challenge to a time‑limited order requiring a specific daycare provider was moot because the order expired before appellate disposition; no exception applied.
  • Attorney fees partially reversed. The fee award tied to delay from the late ICWA disclosure was reversed. Under 25 C.F.R. § 23.107(a), the duty to inquire about ICWA status lies with the court at the outset. It was not “in the interests of justice” to sanction the father for the court’s missed duty. Fees tied to contempt (violation of prior orders) stand; remanded to segregate the amounts.

Analysis

Precedents and Statutes Driving the Decision

  • Troxel v. Granville, 530 U.S. 57 (2000). Anchors the fundamental right of fit parents to the care, custody, and control of their children. South Dakota builds on Troxel to impose a strong presumption favoring parents in disputes with non‑parents.
  • South Dakota framework:
    • SDCL 25‑5‑29. Sets the parental presumption and the limited grounds (abandonment, forfeiture, abdication, or extraordinary circumstances) by which non‑parents may rebut it—by clear and convincing evidence.
    • SDCL 25‑5‑30. Elaborates “extraordinary circumstances” factors, including likelihood of serious harm, extended absence of parental custody, bonded relationships causing significant harm if custody changes, enhanced well‑being in non‑parent care, parental stability, and other serious welfare impacts.
  • Non‑parent visitation derives from custody. Clough v. Nez, 2008 S.D. 125; Beach v. Coisman, 2012 S.D. 31; Aguilar v. Aguilar, 2016 S.D. 20; Veldheer v. Peterson, 2012 S.D. 86. These decisions hold that a non‑parent must first rebut the parental presumption before a court may impose visitation; a best‑interests analysis is unavailable until then.
  • ICWA application and standards:
    • 25 U.S.C. § 1903(1)(i). Defines “foster care placement.” The Court aligns with other states (In re Mahaney (Wash.), O’Brien v. Delaplain (Alaska)) to hold that third‑party custody fits this definition.
    • 25 U.S.C. § 1912(e). Requires clear and convincing evidence, including qualified expert testimony, that continued custody by the parent is likely to result in serious emotional or physical damage.
    • 25 C.F.R. § 23.121(c)-(d). Demands a causal relationship between conditions in the home and the likelihood of serious damage; poverty, crowded housing, or nonconforming behavior, without causal nexus, are insufficient.
    • 25 C.F.R. § 23.107(a). Places the initial duty to inquire whether a child is an “Indian child” on the court at the commencement of proceedings.
  • Standards of review:
    • Extraordinary circumstances determinations: legal question reviewed de novo (Aguilar; In re Guardianship of S.M.N.).
    • Visitation awards implicating constitutional rights: reviewed de novo (Howlett v. Stellingwerf, 2018 S.D. 19).
    • ICWA serious harm: clear error (People ex rel. A.A., 2021 S.D. 66).
    • Attorney fees: abuse of discretion; an erroneous view of law is an abuse (Hiller v. Hiller, 2018 S.D. 74; In re Fred Petersen Land Trust, 2023 S.D. 44).
    • Mootness of time‑limited orders: appeal dismissed absent effectual relief (Lewis ex rel. E.L. v. Garrigan, 2019 S.D. 38; Netter v. Netter, 2019 S.D. 60).

Legal Reasoning

  • No extraordinary circumstances under SDCL 25‑5‑30. The circuit court’s factual findings—entitled to deference—showed the father’s marked improvement in caregiving, including resolving the hygiene issues that initially concerned the caretakers and evaluator. The non‑parents’ bond with the child was acknowledged but, consistent with Veldheer and Beach, ordinary distress from a change in custody does not rise to “extraordinary circumstances” causing “serious detriment.”
  • Visitation impermissible without rebuttal of the parental presumption. Because the non‑parents did not overcome the father’s constitutional presumption, the circuit court lacked authority to award them visitation, notwithstanding its “transition plan” label. As Troxel and South Dakota cases instruct, a fit parent retains the prerogative to decide whether third‑party contact benefits the child. A court cannot reach “best interests” unless and until the presumption is rebutted.
  • ICWA governs the placement decision; evidentiary burden unmet. The Court recognized this third‑party custody proceeding as an ICWA “foster care placement” and therefore required clear and convincing evidence—including qualified expert testimony and a causal nexus—that continued custody with the father would likely cause serious harm. Competing experts testified; the trial court credited the father’s expert (Bear Stops), found improvement in care, and discounted testimony relying on previously discredited evidence. No clear error appeared.
  • Daycare order moot. Because the daycare directive expired before the appeal could be decided, reversal would have no practical effect; the Court did not reach the constitutional question.
  • Attorney fees: duty to inquire is the court’s; sanction not “in the interests of justice.” While SDCL 15‑17‑38 permits fee awards in custody matters, the Court reversed fees tied to the father’s late tribal disclosure because federal regulations assign the initial duty to inquire about ICWA status to the court at the start. Sanctioning a party for delay rooted in the court’s missed inquiry was an abuse of discretion. Fees tied to contempt were not appealed on the merits and remain; the case was remanded to segregate amounts.

Impact

  • Non‑parent visitation tightened. A transitional or “best interests” rationale cannot be used to award non‑parent visitation absent a successful rebuttal of the parental presumption by clear and convincing evidence under SDCL 25‑5‑29 and 25‑5‑30. This forecloses a common end‑run in third‑party custody cases.
  • ICWA’s footprint confirmed in third‑party custody. South Dakota now clearly treats third‑party custody as an ICWA “foster care placement,” activating the statute’s heightened evidentiary standards and qualified expert witness requirements—even when the tribe does not participate.
  • Trial‑court process change. Courts must ask at the outset whether the child is an “Indian child” per 25 C.F.R. § 23.107(a). Failure to do so can disrupt schedules and, as this case shows, cannot be offset by fee sanctions against parties.
  • Attorney fee discipline cabined. Family‑law fee awards under SDCL 15‑17‑38 must be “in the interests of justice” and grounded in correct legal premises. Sanctions based on a court’s own missed ICWA inquiry are vulnerable on appeal.
  • Guardianship is not dispositive. Prior non‑parent guardianship and bonded relationships, without more, will not defeat a fit parent’s presumption or yield permanent visitation.
  • Mootness caution for time‑limited orders. Litigants challenging temporary directives (e.g., daycare) should consider expedited review or stays; otherwise appellate review may be unavailable.

Complex Concepts Simplified

  • Parental presumption: In disputes with non‑parents, a fit parent is presumed to be the best custodian. Non‑parents must overcome this presumption before a court may consider what is “best” for the child.
  • Extraordinary circumstances: Specific, serious conditions (e.g., likely serious harm, extreme instability) proven by clear and convincing evidence that show placing the child with the parent would cause serious detriment.
  • Clear and convincing evidence: A high evidentiary bar—evidence that produces a firm belief or conviction in the truth of the allegations.
  • ICWA “foster care placement”: Any action removing an Indian child from a parent for temporary placement without termination of parental rights. Third‑party custody fits this category in South Dakota.
  • Qualified expert witness (ICWA): An expert with knowledge of the tribe’s child‑rearing practices and social standards who can opine on whether continued custody by the parent is likely to result in serious harm.
  • Causal nexus (ICWA): The evidence must tie specific conditions in the parent’s home to the likelihood of serious harm; generalized concerns (poverty, crowded housing) are insufficient without causal linkage.
  • Mootness: Courts decide real, live controversies. If an appealed order expires and no recognized exception applies, the issue is moot and dismissed.

Discussion of the Separate Opinions

  • Chief Justice Jensen (concurring in part, dissenting in part): Would affirm the full fee award, including fees tied to the trial delay. Although acknowledging the court’s missed ICWA inquiry, he emphasized that Lakota waited until the morning of trial to assert ICWA noncompliance, unreasonably causing delay and justifying fees under SDCL 15‑17‑38.
  • Justice Kern (concurring in part, dissenting in part): Would affirm the visitation order based on extraordinary circumstances under SDCL 25‑5‑30(4) (bond causing significant harm if abruptly severed) and (8) (instability concerns), even though the trial court used a best‑interests analysis. In her view, the record supports a temporary transition visitation plan to protect the child’s emotional stability, and visitation orders remain modifiable under SDCL 25‑4‑45.

Practice Pointers

  • For non‑parents seeking custody or visitation:
    • Establish extraordinary circumstances with detailed, contemporaneous evidence and expert testimony. Bonding and disruption alone are insufficient.
    • If ICWA is potentially implicated, be prepared with ICWA‑qualified experts and evidence showing a causal link between specific home conditions and likely serious harm.
  • For parents:
    • Demonstrate engagement, growth, and stability. Document improvements (e.g., parenting classes, medical follow‑ups) to undercut allegations of detriment.
    • Remember: absent extraordinary circumstances, you decide third‑party contact. Courts cannot impose visitation based solely on best interests.
  • For trial courts:
    • Conduct the ICWA inquiry at the outset per 25 C.F.R. § 23.107(a).
    • Do not reach best‑interests until the parental presumption is rebutted; make explicit findings supporting any fee award under SDCL 15‑17‑38.
  • For all counsel:
    • When using a custody evaluator, ensure the evaluator applies the correct constitutional framework (parental presumption) rather than a parent‑vs‑parent best‑interests model.
    • Time‑limited orders (e.g., daycare) may go moot; seek expedited relief or stays to preserve appellate review.

Conclusion

Melius v. Songer powerfully reaffirms parental primacy in South Dakota: a court cannot award non‑parent custody or visitation—transition plan or otherwise—unless the non‑parent first rebuts the fit parent’s constitutional presumption with clear and convincing evidence of extraordinary circumstances under SDCL 25‑5‑29 and 25‑5‑30. The Court also clarifies that ICWA applies to third‑party custody proceedings as “foster care placements,” demanding heightened proof and qualified expert testimony with a causal nexus to likely serious harm, and it places the federal duty to inquire about ICWA status squarely on the trial court from the outset. Finally, the Court cabins fee‑shifting in domestic cases, reversing sanctions pinned to a court’s own missed ICWA inquiry.

The decision sets a clear roadmap: protect the fit parent’s prerogatives, apply ICWA rigorously when applicable, and ensure that procedural duties—especially the ICWA inquiry—are met early to avoid avoidable delay and error. In the broader legal landscape, Melius v. Songer narrows the path for non‑parent visitation, cements ICWA’s reach in third‑party custody, and strengthens procedural integrity in South Dakota family courts.

Case Details

Year: 2025
Court: Supreme Court of South Dakota

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