The law presumes that the best interests and welfare of a minor will be best served by awarding its custody to the parent and the burden is upon those who claim otherwise to overcome such presumption by clear and satisfactory proof of abandonment or forfeiture or a legal surrender or unfitness of the parent to have custody. Guardianship of Sedelmeier, 491 N.W.2d 86, 87 (S.D. 1992) (quoting Sweeney v. Joneson, 75 S.D. 213, 216, 63 N.W.2d 249, 251 (1954)). This Court has further recognized that "[i]n legal contests between a parent and a nonparent for the custody of a child the threshold question is: Is the parent unfit to have the custody of the child? . . . Without unfitness being established, there is no necessity to look to the best interest of the child."
When the mother, by irresponsible conduct, indicates that her care and custody would be detrimental to the welfare of the child, custody may be awarded to the father. Hines v. Hines, 78 S.D. 464, 104 N.W.2d 375 (1960); Blow v. Lottman, 75 S.D. 127, 59 N.W.2d 825 (1953); Sweeney v. Joneson, 75 S.D. 213, 63 N.W.2d 249 (1954). You will not see that case cited either.
(emphasis supplied).Sweeney v. Joneson, 75 S.D. 213, 216, 63 N.W.2d 249, 251 (1954). In Blow v. Lottman, 75 S.D. 127, 129-131, 59 N.W.2d 825, 826-27 (1953), this Court said:
In a contest concerning the custody of a minor child, the best interests and welfare of a child are of paramount and controlling interest. Sweeney v. Joneson, 75 S.D. 213, 216, 63 N.W.2d 249, 251 (1954). Although parents have a fundamental right to their children, it is not an absolute and unconditional one.
Blow v. Lottman, 75 S.D. 127, 59 N.W.2d 825 (1953). See also Langerman v. Langerman, supra; Application of G.K., 248 N.W.2d 380, 384, n. 4 (S.D. 1976); Sweeney v. Joneson, 75 S.D. 213, 63 N.W.2d 249 (1954); Ex Parte Summers, 43 S.D. 617, 181 N.W. 831 (1921); Haglund v. Egge, 41 S.D. 433, 171 N.W. 212 (1919); and Engle v. Yorks, 7 S.D. 254, 64 N.W. 132 (1895). SDCL 30-27-23 provides:
When someone other than another parent challenges the custody of a parent a clear showing of gross misconduct, unfitness or other extraordinary circumstances affecting the child's welfare is required.Application of G.K., 248 N.W.2d 380, 384, n. 4 (S.D. 1976) (citation omitted); see also Sweeney v. Joneson, 75 S.D. 213, 63 N.W.2d 249 (1954). Other jurisdictions have adopted South Dakota's position on non-parental custody:
When the mother died, for all intents and purposes, the custody determination of the divorce decree was terminated. See SDCL 25-5-7; Sweeney v. Joneson, 75 S.D. 213, 63 N.W.2d 249 (1954); Kienlen v. Kienlen, 227 Minn. 137, 34 N.W.2d 351 (1948). To maintain his rights as a father, he should have come forward and asserted his parental right to custody.
When the mother, by irresponsible conduct, indicates that her care and custody would be detrimental to the welfare of the child, custody may be awarded to the father. Hines v. Hines, 78 S.D. 464, 104 N.W.2d 375 (1960); Blow v. Lottman, 75 S.D. 127, 59 N.W.2d 825 (1953); Sweeney v. Joneson, 75 S.D. 213, 63 N.W.2d 249 (1954). The trial court has broad discretion in awarding custody of minor children, and this Court will not interfere with that discretion unless the record presents a clear case of abuse. Holforty v. Holforty, 272 N.W.2d 810 (S.D. 1978); Pochop v. Pochop, 89 S.D. 466, 233 N.W.2d 806 (1962).
When the mother, by irresponsible conduct, indicates that her care and custody would be detrimental to the welfare of the child, custody may be awarded to the father. Hines v. Hines, 78 S.D. 464, 104 N.W.2d 375 (1960); Blow v. Lottman, 75 S.D. 127, 59 N.W.2d 825 (1953); Sweeney v. Joneson, 75 S.D. 213, 63 N.W.2d 249 (1954); and Septka v. Septka, supra. Whether Kody and Kacee Spaulding were of tender years was a fact question for the trial court to determine, and the court did not abuse its discretion in finding that both boys were leaving the age of tender years and were entering upon the stage of their youth when the benefits of association with their father must be considered.
Custodial preference under the statute is subordinate, however, to the discretionary power of the court to safeguard the best interests of the child. Howells v. Howells, 79 S.D. 480, 113 N.W.2d 533. Where the mother by irresponsible conduct indicates that her care and custody would be detrimental to the welfare of the child or she is unable adequately to care for the child custody may be awarded to the father, or in extreme cases to someone else. Hines v. Hines, 78 S.D. 464, 104 N.W.2d 375; Blow v. Lottman, 75 S.D. 127, 59 N.W.2d 825; Sweeney v. Joneson, 75 S.D. 213, 63 N.W.2d 249. The record consisting of the testimony of the plaintiff and defendant and seventeen witnesses is voluminous and no good purpose would be served by a detailed review.