Legal Question in Family Law in South Dakota

Custody before court?

I am a grandmother of 2 boys. I have complete custody of the older one (5) and shared custody with father of the younger child (4). The fathers great aunt and great grandmother had physcal custody for 1 year and in sept. Agreeded to myself having physcal custody. The great grandmother is too old to care for him anymore and the great aunt works from 8 to 8. The father moved to Texas with girlfriend to get a free trailer to live in. He has never had a relationship with his son and as soon as I went for child support, he wants full custody. The fathers whole family know that he's not doing it for love, but for money. He suprised us on Jan 1, 2004 and wanted to visit with his son. I allowed this because we did have shared custody. Now he won't bring him home. He says his family have physcal custody and that's the way it's going to be til we go to court. Can he do this? Please, I need to know now. I haven't even been served papers yet. Sincerely, Laura


Asked on 1/03/04, 4:03 pm

1 Answer from Attorneys
Phroska L. McAlister PHROSKA LEAKE McALISTER

Re: Custody before court?

A biological parent is always presumed to be the "natural" custodial parent. Unless proved by a court to be "unfit" a parent will be given custody over any other third party, including a grandparent.

In a word...grandparents do not have any rights equal or superior to either or both natural parents.

However, whether he IS the natural parent may be a question that is still open. To wit: if no blood test,the child was born out of wedlock; and no paternity judgment, there is a possibility the child is not "legally" his child; and you would have chance of having the child returned to you, assuming you are the maternal grandmother .

GOOD LUCK.

PHROSKA L. McALISTER, ESQ

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Answered on 1/07/04, 9:12 pm


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