THE MCMILLIAN LAW FIRM PROVIDING COMPASSIONATE LEGAL ADVOCACY IN FAMILY AND DIVORCE FOR CHARLESTON, SC AND SUMMERVILLE, SC
More than any other area of the law, Family Law creates a situation where the emotions and real life consequences of Family Court orders can extend well beyond the parties who are part of the Family Court litigation. It occurs quite a bit in my practice that a potential client will be accompanied by a parent to a consultation. I honestly believe this occurs as a mechanism of support in a trying time that involves a divorce or a child custody fight. However, whenever I see a parent of a potential client walk into the waiting room, I know the question that is coming before they leave the building is . . . Do grandparents have the legal right to see grandchildren?
This is a multi-layered question that has evolved in a legal context quite a lot in the last five years. This situation arises when a parent of the child dies and the surviving parent may prevent the child from visiting the in-laws. It occurs more than you think when a young parent has a falling out with their own parents and prevents the child from visiting the grandparents. The evolution of the law has been slowly moving towards a position more favorable to grandparents, but there are several factors that still dictate that more times than not, and absent some special circumstances that I will outline here, there is no guarantee of grandparents' visitation rights as a matter of law.
The first legal principles at work here are Constitutional protections provided to the biological parents. The Due Process Clause of the United States Constitution has been used to uphold the legal standard of autonomy allowed to the parents of minor children. In addition, many state constitutions and state statutes codify the legal standard that parents are the absolute authority on the administration of the life of a child, absent some showing that make the parent deemed "unfit."
GRANDPARENT RIGHTS TO VISITATION IN SOUTH CAROLINA
The South Carolina Legislature amended a law in 2014 that codified the standard for allowing Family Court ordered visitation rights to grandparents. S.C. Code Ann. Section 63-3-530 was amended to allow grandparents to seek visitation of a minor child through a Family Court order if either or both of the minor child's parents are deceased, divorced, or separated, AND
- The child's parents are unreasonably depriving the grandparents the opportunity to visit the child, including denying visitation of a minor child to a grandparent for a period exceeding 90 days; and
- Awarding grandparent visitation would not disrupt the parent-child relationship; and
- the court finds by clear and convincing evidence that the minor child's parents / guardians are unfit; or
- the court finds by clear and convincing evidence that there are compelling circumstances to overcome the presumption that the parental decision is in the best interest of the child.
The amendment in this Code Section by the South Carolina Legislature lowered the bar for grandparents. Grandparents no longer need to show that the relationship with the child was "similar to a parent child relationship" as was required before the amendment. However, though the bar was lowered, South Carolina Family Courts are going to be strict on the requirements of the statute before issuing a Court ordered visitation requirement in favor of grandparents. It it not enough just to show an unreasonable deprivation of visitation, the grandparents must prove through clear and convincing evidence (a very high standard) that the parents are unfit or that the best interest of the child are so substantially served by visitation that the court will reverse the legal presumption in favor of the parents.
GRANDPARENT RIGHTS TO CUSTODY IN SOUTH CAROLINA
It is one thing for grandparents to seek visitation of a minor child, where the law no longer requires a "parent-child" relationship exist between the grandparents and the child. For grandparents who are seeking custody of grandchildren, the level of proof and the nature of the relationship required to successfully convince a Family Court in South Carolina to award grandparents custody is extremely high.
The first step in determining if grandparents may be awarded custody is to determine whether the grandparents are "de facto custodians" of the child. To prove this, grandparents would have to prove through clear and convincing evidence (a high legal standard) that:
- He or she have been the primary caregiver of the minor child; and
- He or she have been the primary financial supporter of the minor child who has lived with them for at least six months (if the child is under the age of 3) or for at least one year (if the child is over 3 years of age).
*It is important to note that any days that the grandparent takes care of the minor child after filing an action for Custody do not count, so grandparents will want to make sure that they have met the timing requirements above prior to filing the Court action for custody.
If the Family Court makes the determination above that the grandparents are "de facto custodians" of the minor child, then the Court may grant custody to the grandparents upon a showing of:
- the parents are unfit (drug and alcohol abuse, neglect, child abuse, child endangerment, etc.); or
- other compelling circumstances exist
I want to be abundantly clear here, grandparents who seek custody have a very high bar to meet to be successful in any Family Law litigation. The clear and convincing standard is not easy to meet and expectations shall be tempered if, upon review by an attorney, it is appropriate to go forward with a custody action.
WHAT CAN GRANDPARENTS DO TO BE SUCCESSFUL IN COURT?
The bottom line here is evidence and proof. The grandparents may be the most honest and loving people in the world, but if you go into the courtroom with just your story and nothing else, you will not be successful. Grandparents need to document the relationship with the minor child. A log that keeps up with the nights the child spends in the home. It is pictures, letters, emails, cell phone records, financial and bank statements, airline receipts . . .anything that grandparents can show to support the depth of the social and financial relationship with the child.
THE MCMILLIAN LAW FIRM - YOUR CHARLESTON, SC AND SUMMERVILLE, SC FAMILY LAW ATTORNEY
There is a right way and a wrong way to navigate through child based Family Court litigation. I implore that you get assistance of a Charleston, South Carolina Family Law Attorney to help you travel this path and make sure all your legal options and rights are noted and disclosed.
If you live in Charleston, Mt. Pleasant, Summerville, Moncks Corner, James Island, West Ashley, Folly Beach, Johns Island, Walterboro, or any of the other fine communities of the South Carolina Low Country, do not wait another moment. Act now!! Contact The McMillian Law Firm and scheduled your free Family Law consultation today.