PIERRE, S.D. (KELO) — A circuit judge didn’t err in ordering a divorced father to give his consent to passport applications for his three children who were living with their mother so they could go with her on a spring-break vacation to Mexico, according to the South Dakota Supreme Court.
In a decision made public on Thursday, the state’s high court ruled against Nicholas Wasilk of Waubay. He was attempting to prevent his former wife, Heather Wasilk of Watertown, from taking the couple’s three children to an all-inclusive resort at Nuevo Vallarta.
Circuit Judge Robert Spears held a hearing in the matter and issued a written decision on January 30, 2024, ordering “Nicholas to fully cooperate with the passport application process regarding his three children.” The father then appealed the order to the Supreme Court.
Justice Mark Salter wrote the decision, finding no reason to overturn Judge Spears’ order.
“Nicholas’s claim that the circuit court ignored his safety concerns is not supported by the record,” Justice Salter wrote. “The court expressly considered each argument he presented—the court simply reached a different conclusion than Nicholas would have preferred.”
The father also claimed in the appeal that federal law regarding passport applications gave no room for a state court to interfere. He cited a 2014 Georgia decision, Ansell v. Ansell, regarding a child’s passport application.
Justice Salter saw the Wasilk appeal differently: “Read as a whole, 22 C.F.R. § 51.28 (2024) does not purport to supplant state court authority; it seeks to recognize it where, as here, a custody order makes clear that a circuit court may act to authorize a minor’s passport application.”
The federal law specifically recognizes “An order of a court of competent jurisdiction granting sole legal custody to the applying parent or legal guardian containing no travel restrictions inconsistent with issuance of the passport; or, specifically authorizing the applying parent or legal guardian to obtain a passport for the minor, regardless of custodial arrangements; or specifically authorizing the travel of the minor with the applying parent or legal guardian.”
The father also asserted that Judge Spears’ order infringed on his fundamental right as a parent, as recognized by the United States Supreme Court in Troxel v. Granville. The South Dakota justices also disagreed with that argument.
“This presumption, codified in SDCL 25-5-29, establishes primacy for a parent’s rights over non-parent third parties,” Justice Salter wrote. “Here, however, Nicholas asserts this fundamental right against Heather, the mother of the children, who, like him, appears to be capable of acting in the children’s best interests. Accordingly, Troxel’s presumption in favor of a fit parent’s determination simply does not apply, as courts across the country have universally recognized.”
