As family law attorneys in Charleston, we’re often asked about the rights of grandparents in divorce, visitation, and custody cases in South Carolina. Sometimes, one of the parents dies, and the other parent withholds the child from his or her in-laws. Sometimes, the grandparents have a falling out with their own child and are not allowed to see their grandchildren. If a grandparent wishes to seek custody or visitation with their grandchild, they should be aware of what they are up against. The Due Process Clause of the Constitution grants people a fundamental right in the care, custody, and control of their children, and South Carolina’s family courts are often reluctant to go against a fit parent’s choice. This article is an in-depth review of the laws regarding custody and visitation of grandparents in South Carolina and pointers on making a case on behalf of grandparents.
Grandparents’ Right to Custody – De Facto Custodian
If a grandparent seeks custody of their grandchild from a biological or adoptive parent, the grandparent will have to show that he or she (or possibly both) is a “de facto custodian” of the child. To prove they are a de facto custodian, the grandparent must prove to a high standard of proof (called “clear and convincing evidence”) that he or she has been the primary caregiver and financial supporter of a child who has lived with him or her for at least six months (if the child is under three years old) or for at least one year (if the child is older than three). Any days that occur after the day the case is filed don’t count, so a grandparent may wish to wait to file their case to ensure that they meet the required time period.
If the judge finds someone is a de facto custodian, the court may award custody or visitation to the grandparent if it finds, clearly and convincingly, that (1) the parents are unfit or (2) that other compelling circumstances exist. Proving that parents are unfit can be done a number of ways. Sometimes a grandparent can show that the parents abuse or neglect the children, are addicted to drugs or alcohol, make very bad decisions on a regular basis, or put the children’s safety in jeopardy. If the parents are that bad, sometimes the Department of Social Services has already been involved, and if so, a grandparent can’t bring a case to ask to be the de facto custodian. The “other compelling circumstances” requirement is fairly vague, but the word “compelling” means grandparent’s request won’t be granted easily.
Visitation by the Grandparent
Prior to June 9, 2014, if a grandparent cannot establish him or herself as a de facto custodian, the grandparent may still be able to obtain visitation. South Carolina amended its Code of Laws in 2010 to modify the language found in § 63-3-530(33), which provides for grandparents’ visitation rights. This law was intended to meet the constitutional challenges of a United State Supreme Court case, Troxel v. Granville.
The Grandparent Visitation law allows for a family court judge to order visitation for the grandparent of a minor child under limited circumstances.
- First, the grandparent must be the natural or adoptive parent of a parent of the child.
- Second, either or both of the parents of the minor child must be deceased, divorced, or living separate and apart in different habitats.
- Third, the court must find that the child’s parents or guardians are unreasonably depriving the grandparent of the opportunity to see the child, and that visitation must have been denied for at least 90 days.
- Fourth, the court must find that the grandparent’s relationship with the child is similar to a parent-child relationship.
- Fifth, the court must find to a higher standard of evidence (called “clear and convincing evidence”) that either (1) the child’s parents or guardians are unfit or (2) there are “compelling circumstances” to overcome the legal presumption that the parent or guardian’s decision to deny visitation to the grandparent is in the child’s best interests.
If all of these factors are met, then the family court may award visitation to the grandparent. The court must decide on the visitation schedule carefully as it may not interfere with the parent-child relationship. The court will also likely look at other things relevant to the child’s life to ensure that the grandparent’s visitation does not interfere with the child’s normal activities.
“Compelling circumstances” will be determined on a case-by-case basis, but the family court will consider the children’s best interests in deciding custody. It is not enough to show that a child may benefit from contact with a grandparent. Instead, the family judge will consider several factors including:
- The children’s relationship with each other and with their parents;
- The children’s adjustment to home, school, and community;
- The mental and physical health of all children and their parents; and,
- In certain circumstances, the wishes of the child or children.
As of June 9, 2014, § 63-3-530 was amended by our legislature to make it easier for grandparents to seek a family court order permitting visitation with their grandchildren. The family court may order visitation for the grandparents of a minor child where either or both of the child’s parents are deceased, divorced, or separated and if:
(1) the child’s parents or guardians are unreasonably depriving the grandparent of the opportunity to visit with the child, including denying visitation of the minor child to the grandparent for a period exceeding ninety days; and
(2) awarding grandparent visitation would not interfere with the parent-child relationship; and:
(a) the court finds by clear and convincing evidence that the child’s parents or guardians are unfit; or
(b) the court finds by clear and convincing evidence that there are compelling circumstances to overcome the presumption that the parental decision is in the child’s best interest.
Essentially, the major difference in this amendment is that a grandparent no longer needs to show that their relationship with their grandchild was “similar to a parent-child relationship.” A grandparent seeking court-ordered visitation should also be aware that the judge will have the ability to order the grandparent to pay the parent or guardian’s attorney’s fees if the grandparent gets less than everything the grandparent asked for. Likewise, if the grandparent prevails, the judge could order the parent or guardian to pay the grandparent’s attorney’s fees, but if a grandparent is reading this article, the grandparent is likely concerned with much more than just money.
The Psychological-Parent Doctrine
South Carolina has recognized the Psychological-Parent Doctrine, which allows for a third-party to request custody or visitation with a child. To prove that a psychological-parent relationship exists with the child is one of the most challenging things to do in the family court. Also, there is a question as to its strength in light of the Troxel Supreme Court opinion.
For a court to find this situation exists, it must first look to four factors established by the courts. The factors are (1) whether the biological or adoptive parent(s) consented to, and fostered, the third-party’s formation and establishment of a parent-like relationship with the child; (2) whether the third-party and the child lived together in the same household; (3) whether the third-party assumed obligations of parenthood by taking significant responsibility for the child’s care, education and development, including contributing towards the child’s support, without expectation of financial compensation; and (4) whether the third party has been in a parental role for a length of time sufficient to have established with the child a bonded, dependent relationship parental in nature.
Building the Case for Grandparents’ Rights to Custody or Visitation
Judges will hear all sorts of stories regarding the kids’ relationships with the grandparents. Often, the stories don’t match, and the court will try to figure out the truth. A fundamental way of doing this is for a grandparent to build up their bank of tangible evidence. Pictures of grandparents with the children are excellent. Receipts, credit card and bank statements, airline itineraries, or other evidence of event attended by both the grandparent and child may be useful as well. Receipts or credit card or bank statements of items bought for the kids should be gathered. These items can be useful, such a clothes, or strictly fun, such as toys. Grandparents should look for emails, letters, or text messages with the parents to show evidence of them communicating about the kids. They should look for birthday or holiday cards to the grandparents and signed by the kids. They should look for emails, letters, and text messages with the kids. They should check the phone logs for evidence of repeated phone calls with the kids.